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July 12, 2004.

JAMES J. DOLAN, Plaintiff,
ARTHUR ROTH, Commissioner; New York State Department of Taxation, et al., Defendant.

The opinion of the court was delivered by: NEAL McCURN, Senior District Judge


Plaintiff James Dolan is a self-described "outspoke[n] and vigorous activist in that Democratic party in the City of Hudson, located in Columbia County, State of New York." Complaint ("Co.") at 10, ¶ 26. In this action, brought pursuant to 42 U.S.C. § 1983, plaintiff alleges that his First Amendment and Equal Protection rights were violated when defendants terminated him in retaliation for his Democratic party affiliation. This alleged retaliation occurred when plaintiff was terminated as an Investigator with the New York State Department of Taxation and Finance ("the Tax Department").*fn1 From defendants' standpoint, plaintiff's disqualification was not politically motivated. In fact, it was entirely proper because during the application process for an investigator position, he omitted relevant facts pertaining to a prior conviction, which occurred during his employment as Chief of Police for the Hudson City Police Department.

  Defendants are now moving for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. They are also moving to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Plaintiff cross moves for an order of discovery pursuant to Fed. R. Civ. P. 56(f).


  I. Hudson City Police Department

  Plaintiff first began serving as Chief of Police of the Hudson City Police Department on October 3, 1986. Co. at 11, ¶ 27. During his service, plaintiff was the subject of two separate indictments. Id. at 14, ¶ 39 and 16, ¶ 45. Eventually he was convicted of four misdemeanors. Id. at 16, ¶ 47. Broadly stated, from plaintiffs' perspective the motivation for his indictment was because "[p]rominent Republicans in Columbia County, including the Sheriff and District Attorney, viewed [him] as a threat to the Republican Party's political control of Columbia County and the Sheriff's office in [that] County, which was source of patronage jobs for County Republicans." Id. at 14, ¶ 38. As a result of his convictions, "plaintiff was placed on probation, [and ordered to] pa[y] a fine, and [to] complete[] community service." Id. at 16, ¶ 47. However, later the sentencing judge found plaintiff guilty of violating his probation. Therefore, plaintiff was sentenced to 60 days imprisonment, continued probation and an increase in the number of community service hours to be performed. See id., exh. A thereto at 2.

  Plaintiff's career with the Police Department was over.

  II. State Investigator Position

  Once the dust had settled, "in 1996 plaintiff decided to apply for a position as an investigator with [the] State in order to make use of his background and experience in law enforcement." Id. at 17, ¶ 48. As part of the hiring process, plaintiff took three different civil service examinations, scoring 100% on two of the tests and 95% on the third. Id. at 17, ¶ 50. Despite those high test scores and his number one ranking "on all three statewide eligible lists[,]" on approximately August 7, 1996 one of the defendants, Joseph R. Healy, Director of Investigations for the State Civil Service Department ("Civil Service"), advised plaintiff that "he could not be appointed at that time[.]" Id. at 17, ¶ 51. The reason given by Healy was that plaintiff answered "yes" to certain questions regarding whether he had been discharged from employment "for reasons other than lack of work or funds, disability or medical condition; and whether he had ever been convicted of a crime." Id. at 17-18, ¶ 51.

  Plaintiff thus was required to complete additional Civil Service forms to "evaluat[e] the circumstances of the affirmative answers" which plaintiff had given. Id. at 18, ¶ 52. As part of this further background check, plaintiff was required to provide Civil Service with a report from the Columbia County Department of Probation. Id. at 19, ¶¶ 55-56. Plaintiff made that request and Probation responded. Id. at 20-21, ¶ 57. "Civil Service, for unknown reasons, never received Probation's statement which it had sent to Civil Service pursuant to petitioner's request. Affirmation of Robert Siegfried (Aug. 28, 2003), exh. A thereto (Record on Appeal of Article 78 Proceeding ("R."), at 7. On August 23, 1996, defendant Healy informed plaintiff that Civil Service had made "`an informed determination'" and that plaintiff's "`explanation'" was "`found satisfactory'" and thus his name could "`be certified' for appointment." Co. at 22, ¶ 59. Despite certification in 1996, plaintiff was not actually appointed to an Investigator position until several years later, on February 17, 2000. Id. at 22, ¶ 62. During the years between his dismissal as Police Chief and his State appointment, plaintiff continued to maintain a relatively high profile in local Democratic politics. Id. at 23, ¶¶ 65-71.

  III. Civil Service

  Plaintiff's employment as a Tax Department Investigator was short-lived, however. He worked for approximately seven weeks. Soon after his appointment the "Hudson Register-Sun" ran an article about plaintiff stating, among other things, that his career with the police department ended "in controversy when he was prosecuted on a variety of criminal charges relating to this job as Hudson's police chief." Co., exh. B thereto. That article went on to note that plaintiff, a Democrat, had been appointed with a Republican governor in office. Id. at 24, ¶ 73, and exh. B thereto. Following the publication of that article, purportedly "Republican Party officials" contacted defendant Hard, who at that time was the Tax Department's Deputy Commissioner. Co. at 24, ¶ 74. Supposedly she then contacted Tax Department officials regarding plaintiff's employment. Id. at 24-25, ¶ 74. An investigation ensued. After a several month investigation into the circumstances surrounding plaintiff's appointment, on September 19, 2000 Civil Service revoked plaintiff's appointment and he was terminated effective September 21, 200. Id. at 30-31, ¶ 89 and 33, ¶ 93. The stated reason for that termination was that plaintiff did not "disclose in his 1996 employment application certain facts regarding his violation of probation and subsequent resentencing on a prior criminal conviction." R. at 6.

  IV. Article 78 Proceeding

  Plaintiff then appealed to the Civil Service Commission and shortly thereafter commenced an Article 78 proceeding in state court. Co. at 34, ¶¶ 94 and 95. During the Article 78 proceeding, relying upon section 50(4) of the Civil Service Law, the Supreme Court held that the "Civil Service's decision to revoke [plaintiff's] appointment, . . ., was fully in accordance with the law." R. at 8. That statute reads in relevant part as follows: "[T]he state civil service department . . . may investigate the qualifications and background of an eligible after has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, . . . may revoke such eligible's certification and appointment and direct that his employment be terminated[.]" N.Y.Civ. Serv. L. § 50(4) (West Supp. 2004). In the Supreme Court's opinion, plaintiff's "parole violation and subsequent re-sentencing were facts that, if known to . . . Civil Service in August 1996, would have justified a disqualification and refusal to certify [plaintiff] on the eligible list." Id. at 8. Thus, the state supreme court soundly concluded that "even if the petitioner's application could not be viewed as false or deceptive to the degree that it did not disclose his probation violation, Civil Service's decision to revoke petitioner's appointment, . . ., was fully in accordance with law." Id. (emphasis added).

  On appeal the Third Department affirmed, also invoking Civil Service § 50(4), pointing out that Civil Service's decisions under that statute are "purely a matter of discretion[.]" Dolan v. New York State Department of Civil Service, 304 A.D.2d 1037, 1038 (3rd Dep't 2003) (citation omitted). The Appellate Division agreed with Civil Service's rationale for disqualifying plaintiff, i.e. the integrity required of investigators in the Tax Department justified revoking plaintiff's position based "upon a finding of material omission of facts that otherwise would have precluded [plaintiff] from qualification[.]" Id. at 1039. Then, given the "wide discretion" which Civil Service is afforded "[i]n determining the fitness of candidates for civil service employment," the court accurately noted that its review was "limited to . . . whether the agency action was arbitrary or capricious[.]" Id. (citation omitted). Given that "limited" standard of review, the Third Department held that plaintiff's "failure to mention his probation violation in the application supplement provided a rational basis for the conclusion that such omission was deceptive and intentional, thereby justifying revocation of [plaintiff's] appointment." Id.

  In that appeal plaintiff also raised the issue of Supreme Court's denial of his request for discovery. The Appellate Division held that the Supreme Court properly denied same because "`judicial review of an administrative determination is limited to the record before the agency and proof outside the administrative record should not be considered[.]'" Id. (internal quotation marks and citation omitted). The court concluded by stating that it has "considered petitioner's additional contentions, including his assertion that he was denied due process, and [it] f[ound] them equally unpersuasive." Id. On May 29, 2003 plaintiff sought permission to appeal the Appellate Division's decision to the New York Court of Appeals. Siegfried Aff., exh. E thereto. For whatever reason, that appeal did not go forward.

  On April 30, 2003 plaintiff commenced this section 1983 civil rights action wherein he alleges two causes of action: (1) that he was terminated as a Tax Department investigator in retaliation for exercising his First Amendment rights, and (2) that that termination violated his Equal Protection rights.


  I. Scope of Review

  "When (as here) a jurisdictional challenge under Fed.R. Civ. P. 12(b)(1) is addressed to the complaint, a court accepts as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003) (citations omitted). The same standard applies to a Rule 12(b)(6) motion. See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In setting forth their respective version of the facts, the parties have cited to documents beyond the complaint however. For example, they heavily rely upon the record on appeal in plaintiff's prior Article 78 proceeding. Thus it is necessary to determine to what extent a court may consider matters outside the complaint here.

  Even though Rule 12(b) motions are "testing the adequacy of the complaint," see United States v. City of New York, 359 F.3d 83, 88 (2d Cir. 2003) (citation omitted), in deciding such motions courts also may "review documents extraneous to the complaint[.]" Salichs v. Tortorelli, No. 01 Civ. 7288, 2004 WL 602784, at *2 (S.D.N.Y. March 29, 2004) (citing Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002)). Courts may look to such documents when they are "`integral'" to the complaint because the complaint "relies heavily upon [the] terms and effect [of those documents.]" Pollock v. Ridge, 310 F. Supp.2d 519, 524 (W.D.N.Y. 2004) (internal quotation marks and citations omitted) (KC). A court may also take into account "any documents attached to the complaint or incorporated by reference[,]" Rombach v. Chang, 355 F.3d 164, 169 (2d Cir. 2004) (citation omitted), as well as "`matters of which judicial notice may be taken.'" United States Fidelity & Guaranty Company and American Home Assurance v. Petroleo Brasileiro S.A., No. 98 CIV 3099, 2001 WL 300735, at *2 (S.D.N.Y. March 27, 2001) (quoting Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)) (other citation omitted). As to the latter, a court is "permitted to take judicial notice of court documents from previous actions." Washington v. United States Tennis Association, Inc., 290 F. Supp.2d 323, 326 (E.D.N.Y. 2003) (citing, inter alia, Marchon Eyewear, Inc. v. Tura L.P., No. 98 CV 1932 (SJ), 1999 WL 184107, ...

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